Between

And

This is an appeal
against the decision of the Court of Appeal, Lagos Division delivered on 13th
June 2002.

For a clear
understanding of the facts and circumstances giving rise to this case, I
find it necessary to give the background history of the events culminating
to this appeal. By a charge sheet dated 24th March 1997
containing seventeen (18) counts, the Appellant instituted this action
before the Failed Banks (Recovery of Debts) and Financial Malpractices in
Banks Tribunal sitting in Enugu. The charge sheet was signed by Mr. Emeka
Ngige a private Legal Practitioner. Later, on
the order of the Tribunal the original charge sheet containing 18 counts was
filed on the same day. It was also signed by Emeka
Ngige Esq.

The trial of the
respondent commenced at the tribunal on the said counts charges, but could
not be completed before the coming into effect of the 1999 Constitution on
the 29th of May 1999. With the advent of civilian administration in 1999
Decree No. 18 of 1994, was repealed and Decree No,62 of 1999
titled "Tribunals (Certain Consequential Amendments, etc) Decree 1999, which
came into effect on 28th of May 1999, was promulgated under which
all matters pending before any Failed Banks Tribunal, were transferred to
the Federal High Court or State High Court as the case may be.

Pursuant to the
provisions of the said Decree No. 62 of 1999, the amended charge
against the respondent was consequently transferred to the Federal High
Court Lagos from the Enugu Failed Banks Tribunal for trial denovo.
Accordingly on the 27th of October 1999 the amended charge
jointly signed by Mrs. M. 0. Fatunde, a Senior State Counsel with the rank
of Assistant Chief Legal Officer and Emeka Ngige
Esq. a private legal practitioner on behalf of the Hon. Attorney-general of
the Federation was filed. It was accepted by the trial court and the counts
on the charge sheet were read and explained to the respondent who pleaded
not guilty to all of them. The respondent was on his application granted
bail pending trial and the case adjourned to 17/11/99 for hearing and later
to 29/3/2000 and finally to 19/4/-2000 for definite trial on 19/4/2000.

On the 18/4/2000,
the respondent filed a Summons on Notice supported by an affidavit praying
the trial court to strike out the charge filed against him for want of
jurisdiction on the grounds that the charge was not instituted in accordance
with the due process of law and the requisite provisions of the
Constitution. The summons was then heard by the trial court and in a
considered ruling, the learned trial judge Marden
J, held that the charge was regular, competent, valid and in accordance with
the constitution. He therefore had the jurisdiction to try the respondent on
the charge.

Dissatisfied with
this ruling, the respondent appealed to the Court of Appeal, which after
hearing the appeal, allowed the appeal, and struck out the charge against
the respondent. It held that;

"...
The amended charge brought against theappellant
(now respondent) on 28th October 1999 constitutes a new charge
and that the provisions of the 1999 Constitution apply to it and must be
observed".

This appeal is
from that decision.

In this court,
parties filed and exchanged their respective briefs. The appellant
formulated two issues for the determination of this court, which read: -

"(i) Was it not wrong of the Court of
Appeal to hold that the amendment of the charge against the respondent after
the commencement of the 1999 Constitution makes the amended charge a new one
and the initiation of which was invalidated by the provisions of that
Constitution; notwithstanding that the charge was unquestionably valid at
the time of its filing in 1997.

(ii)
If Section 174 of the 1999 Constitution forbids the Attorney-General
of the Federation from instructing a private Legal practitioner to initiate
criminal prosecution (s) as decided by the Court of Appeal, but not conceded
by the Appellant, has the signature of a state counsel on the amended charge
not foreclosed any question about its validity regardless of whether or not
it was countersigned by a private legal practitioner authorized by the
Attorney-General to do so?

The respondent in
his brief also adopted all the two issues raised by the appellant, which I
shall consider in this appeal.

In the Summons On
Notice dated 13/4/2000 and filed on 18/4/2000 in the trial Federal High
Court, the respondent prayed the court for an order striking out the charge
against the respondent for want of jurisdiction of the court to entertain
the charge on the grounds that the charge was not instituted in accordance
with due process of law and requisite Constitutional provision. The summons
was further explained by the affidavit in support in the following
paragraphs: -

"4. That
the charge, instituted against the Accused Person/Applicant was signed on
behalf of the Attorney-General of the Federation by Mr. Emeka
Ngige Esq., a Private Legal Practitioner.

5.
That I am informed by Chief AfeBabalola SAN who I verily believe that the
Attorney-General cannot delegate his power to initiate
criminal proceedings to a Private Legal Practitioner.

6.
That I verily believe that Mr. Emeka Ngige
lacked authority in law and in fact to sign on behalf of the
Attorney-General of the-Federation."

As I stated
earlier the learned trial judge; after hearing parties on the said summons,
decided that the said charge was competent valid and constitutional and that
he had jurisdiction to entertain it. But on appeal, the Court of
Appeal held that the charge was a new charge and therefore not valid before
the trial court, Looking at the 2 issues of the
appellant, it appears to me clearly that they are interwoven in many
respects and I therefore intend to consider them together.

The original
charge was filed in the Failed Bank Tribunal Enugu on 24th March
1997. The charge sheet was signed by Emeka Ngige
Esq. a legal practitioner on behalf of the Attorney-General of the
Federation pursuant to the provisions of Section 24 (2) of the Failed
Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18
of 1994 which provides:

"24(a) Prosecutions for Offences under this Decree shall be instituted
before the Tribunal in the name of the Federal Republic of Nigeria by the
Attorney-General of the Federation or such other Officer in the Federal
Ministry of Justice as he may authorize so to do, and addition thereto
he may .......

(b)
If a Tribunal so directs or if the Central Bank of Nigeria, or the Nigeria
Deposit Insurance Corporation so request, authorize any other legal
Practitioner in Nigeria,
to undertake any such
prosecution directly or assist therein.

(c)
The question whether any or what authority hasbeen given
in pursuance of sub-section (2) of thissection
shall not be inquired into- by any personother than
the Attorney-General of the Federation".

(Underlining
mine)

By a letter dated
3rd August 1995, and signed by the then Attorney-General of the
Federation (Chief M. A. Agbamuche SAN) Emeka
Ngige was appointed a prosecuting counsel for
the Failed Banks Tribunal Lagos Zone and given the fiat to prosecute cases
arising from the Failed Banks (Recovery of Debts) and Financial Malpractices
in Banks Decree 1994. Therefore the signing and filing of the charge sheet
before the Failed Banks Tribunal Enugu in 1997 by Emeka
Ngige Esq. was perfectly in order. The Court of Appeal properly
recognized this when it said: -

"There is no
doubt that under the scheme of things in 1997, the Attorney-General of the
Federation could in appropriate circumstances authorize a private legal
practitioner .to undertake the prosecution of
offences under Decree No 18 of 1994. It is also noteworthy that only
the Attorney-General of the Federation could at the time raise questions as
whether or not such authority to prosecute was properly given".

I entirely agree
with the Court of Appeal on this.

In 1999, just
before the advent of the civil regime in Nigeria, the Failed Banks Decree 18
of 1994 was repealed by the Tribunals (Certain Consequential Amendments etc)
Decree No. 62 of 1999, which came into operation on the 28th
of May 1999. By this new Decree all matters pending before the Failed Banks
Tribunals shall be transferred to the Federal-High Court or State High
Courts as the case may be for trial denovo. Accordingly in this case, the
proceedings were transferred from the Failed Banks TribunalEnugu to
the Federal High Court Lagos, and on amended charge containing 19 counts was
filed on 27 - 10 - 99 and accepted on 28/10/99 by that court. The charge
sheet was signed by (p. 51 of the record)

'Mrs. M. O.
Fatunde

Assistant Chief
Legal Officer

Federal Ministry
of Justice D. P. P. Office Lagos

and

Emeka
Ngige Esq.

Prosecutor

For: The Hon.
Attorney-Generalof the Federation

27/29 Martins
Street

4th
Floor, Lagos."

It is clear
therefore that the amended charge was filed in the Federal High Court after
the coming into operation of the 1999 Constitution. What then is the
position of that charge? According to the provisions of Section 1 (3) of
the Decree No 62 of 1999 -

"A charge, claim
or court process filed before a Tribunal established under any of .the
enactments specified in the schedule to this Decree shall be deemed to have
been duly filed or served before the Federal High Court or High Court of a
State, as the case may be and as such a charge, claim and court process
shall be deemed amended as to title, venue and such other matter as may be
appropriate to give effect to this sub­section without further assurance
than this Decree".

There is no
doubt, it seems to me, that the intention of making thisprovision
is to make it possible for the receiving court, be it Federal High Court or
the State High Court, to accept in toto
any charge, claim or court process from the Failed Banks Tribunal without
anything at all. If it is a criminal charge as in this case, the charge
shall be deemed to be amended as to title of what Tribunal it was first
filed and as to venue and any appropriate action to give effect to the
section. In the instant case, the charge sheet filed by the prosecution
against the respondent "in the Failed Banks Tribunal Enugu and signed by
Emeka Ngige Esq. appears to me to be the same
charge on the same criminal matter as the one termed "amended charge" filed
by Mrs. Fatunde and Emeka Ngige on 27/10/99. The
only slight difference is the addition of 1 count thereon which for all
intents and purposes formed part of the same criminal charge against the
respondent, which originated in the Failed Banks Tribunal. Also since the
original -charge was properly and validly instituted before the Failed Banks
Tribunal Enugu under Decree No 18 of 1994, it would be deemed to be validly
instituted by filing it in the Federal High Court pursuant to the Decree.
No 62 of 1999 even though called amended charge. It is not and cannot in
my view be called a fresh or a new charge in the circumstances of this case.

As set out
earlier in this judgment, the so-called amended charge was the signed
jointly by Mrs. M. 0. Fatunde and Emeka
Ngige Esq., instituting the criminal charge
against the respondent. There is no doubt at all that the power to
institute criminal proceedings against any person in the 1999 Constitution
lies on the Attorney-General cf4he State or the Federation as the case may
be, but such power may be exercised by the Attorney-General himself or
through any officers of his department. See Sections 174 and 211 of the
1999Constitution.
These sections though very similar in content do not require that the
officers can only exercise the power to institute criminal proceedings if
the Attorney General expressly donated his power to them. The provisions of
the sections presume that any officer in any department of the Attorney
General's office is empowered to initiate criminal proceedings unless it is
proved otherwise. This will not be in conflict with our decision in A. G.
Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483, where the main
controversy was that there was no incumbent Attorney-General who could have
donated the power to discontinue criminal prosecution in the case concerned.
There is also no doubt in my mind that Mrs. Fatunde, an Assistant Chief
Legal Officer in the Federal Ministry of Justice, D. P. P. Office, is an
officer in one of the departments of the Attorney-General of the Federation
and is highly qualified to institute criminal proceedings against the
respondent. She has therefore validly and properly, in my view, signed the
amended charge filed on 27th October 1999. On the signature of
Mrs. Fatunde alone, the charge is properly laid and filed in the Federal
High Court, Lagos without more. The signature of Emeka
Ngige is not necessary for this purpose and can be struck-out. But
Emeka Ngige's signature can be allowed to stay
since it was valid on theoriginal
charge in the Failed Banks Tribunal and by the provisions of Section 1
(3) of the Decree No. 62 of 1999, the Federal High Court can accept the
charge with appropriate amendment. There is also no existing law I am aware
of invalidating the charge as it stands and the respondent has not cited any
legal authority challenging the validity of the charge with the signature of
Mrs. Fatunde and Emeka Ngige thereon. Most of
the cases -cited by thelearned
counsel for the parties in their briefs are either on the interpretation ofa section
of the constitution which is different from the one being considered or on
decided cases on the old Decree 18 of 1994 which was repealed and whose
provisions were overtaken by those of the 1999 Constitution. They are
therefore in my respectful view, irrelevant and cannot be useful in this
appeal. The case of A. G. Kaduna State v. Hassan (supra), which I
earlier mentioned, is clearly distinguishable from this case. In that case,
there was no incumbent Attorney General who could possibly or be presumed to
donate the power and the subject matter was discontinuance of criminal
prosecution and not initiation thereof as is the case here. The cases of
Comptroller Nigeria Prison services & Ors v. Dr. Femi
Adekanye & Ors (No 1) 2002-15 NWLR (pt.790) 318 and many
others cited by the appellant's counsel, substantially dealt with the
appearance of private legal practitioner in criminal cases on behalf of the
Attorney-General and not the initiation of such criminal proceedings. To
that extent, they are irrelevant here.

From all what I
have stated above, it is my respectful view that the Courtof Appeal
was wrong to hold that the amended charge filed on 27th October
1999 in the Federal High Court Lagos was a new charge as far as the
respondent was concerned and that the charge as signed by Mrs. M. O . Fatunde,
Assistant Chief Legal Officer of the Federal Ministry of Justice and Emeka
Ngige Esq. a legal practitioner was invalid,
incompetent and unconstitutional. I therefore resolve the 2 issues for
determination in favour of the appellant.

Accordingly, this
appeal is meritorious. I allow it, set aside the decision of the Court of
Appeal and restore that of the trial Federal High Court. The case is
remitted to the Federal High Court for trial.

Judgment Delivered By

SylvesterUmaruOnu, J.S.C.

Having been
privileged to read before now the judgment of my learned brother
Kalgo, J.S.C.
I am in entire agreement with him that the appeal is meritorious and must
therefore succeed. Consequently I allow the appeal and order the case to be
remitted to the Federal High Court for trial.

Judgment Delivered By

AlomaMariamMukhtar,
J.S.C.

I have read in
advance the lead judgment delivered by my learned brother
Kalgo, JSC. I am in full agreement with him that
the appeal has merit and deserves to succeed. In this vein, I also allow the
appeal, and abide by the consequential order made therein.

JudgmentDelivered
By

Ikechi
Francis Ogbuagu, J.S.C.

This is an
Interlocutoryappeal against the decision of the Court of Appeal,
Lagos Division (hereinafter called "the court below") delivered on 13th
June, 2002 allowing the appeal by the Accused Person/Respondent
against the Rulingof the Federal High Court, Lagos Division which
had dismissed his application, to strike out the amended charge on the
ground that it was irregular, incompetent, invalid and unconstitutional.
There are three (3) grounds of appeal and the "Appellant, has formulated
two (2) issues for determination, namely;

(i)
Was it not wrong of the Court of Appeal to hold that the amendment of the
charge against the Respondent after the commencement of the 1999
Constitution, makes the amended charge a new one and the initiation of which
was invalidated by the-provisions of that Constitution, notwithstanding that
the charge was unquestionably valid at the time of its filing in 1991.

(ii)
If Section 174 of the 1999 Constitution forbids the
Attorney-General of the Federation from instructing a private legal
practitioner to initiate criminal prosecution(s) as decided by the Court of
Appeal, but not conceded by the Appellant, has the signature of a state
counsel on the amended charge not foreclosed any question about its validity
regardless of whether or not it was countersigned by a Legal Practitioner
authorised by the Attorney-General to do so?"

I note that the
Respondent has adopted in its entirety, the above issues of the Appellant. I
will therefore, confine myself in this Judgment even briefly, to the
relevant facts in the case that led to this appeal. The Respondent, was
originally arraigned before .the Failed Banks (Recovery of Debts) and
Financial Malpractices in Banks Tribunal sitting in Enugu. The trial
commenced but was not concluded because of the promulgation of Tribunals
(Certain Consequential Amendments, etc.) Decree No. 62 of 1999),
which came into force on 28th May 1999. Consequently, the charge
against the Respondent was transferred from Enugu, to the Lagos Division of
the Federal High Court. On 27th October, 1999, an amended charge
was filed at the said High Court and was signed by a Staff/Officer of the
Federal Ministry of Justice - Mrs. O.O. Fatunde - a Senior State Counsel
with the rank of an Assistant Chief Legal Officer and also signed by Emeka
Ngige, Esqr - a
Private Legal Practitioner and who was the Prosecutor at the Tribunal on the
Authority of the Attorney-General of the Federation and who in fact, applied
for the commencement of the trial of the Respondent for the offences with
which he was charged. (See page 19 of the Records).

On 28th
October 1999, the Respondent appeared in that court or was arraigned. The
amended charge of now nineteen (19) counts, (instead of the original
eighteen (18) counts), was read to the Respondent who pleaded "Not Guilty"
to all the counts. His learned counsel, applied for bail, which was granted
without any objection. By a Summons on Notice dated 13th April,
2000, the Respondent, sought an order striking out the charge for want of
jurisdiction on the grounds that,

"the
charge was not instituted in accordance with due process of law and
requisite constitutional provision".

In other words,
that the charge was invalid by the fact that it was
Ngige, Esqr, who initiated it and not
Mrs. Fatunde and that he could not do so on behalf of the:
Attorney-General of the Federation being a Private Legal Practitioner. After
hearing arguments from the learned counsel to the parties on 19th
June 2000, the learned trial Judge, in a considered Ruling, dismissed the
application/objection. Dissatisfied with the said decision, the Respondent
appealed to the court below which as 1 stated earlier in this Judgment,
allowed the appeal and set aside the said Ruling and in its place, granted
the said application of the Respondent by striking out the charge, hence the
instant appeal.

Before going into
the merits of this appeal, I note at page 52 of the Records that the
proceedings before the trial court on 28th October
1999, appear inter alia, as follows:

"Accused Person
present in Court. Emeka NgigeEsqr, with E.J. KachukwuEsqr, for the Prosecution.O. OluborodeEsqr, for the Accused Person.

Prosecutor;
This is a transferred matter from the Failed Bank
Tribunal and Federal High Court Enugu Division. This is a matter that was
part heard before (he dissolution of the
Tribunal, which has now become vested in this Court by virtue of Decree 62
of 1999. The matter will have to be started de novo by virtue of that
Decree. In the mean time we have filed an amended charge on 27/10/99. If it
pleases the court we shall order the registrar to read the charge and
thereafter the issue of bail would follow.

In effect we are
asking (he court to substitute the charge dated the 24/03/97 with the one of
27/10/99. We are making this application pursuant to Section 162 and 163
of the C.PA (sic).

Court:
Do you wish to say anything?

OluborodeEsq;We were served with an amended charge just this
morning. There was never any formal application to amend but we shall not
be opposing.

Having said this, I am aware that it is the agreement of both
counsel that the accused person is entitled
to bail. Moreso that he pleads not guilty to all the
charges against him. He is presumed to have put himself on
trial and that is where the very principle of the accused presumption of
innocence begins and that makes the accused person automatically entitled to
bail since the charges he is standing trial for are not capital
offences",

[the
underlining mine]

I have taken
pains to reproduce part of what transpired on' the date the Respondent was
arraigned before the trial court and when and after he took his plea and
then his learned counsel applied for bail which was not opposed. From the
foregoing, the Respondent's learned counsel knew and was aware of the
signatories on the charge sheet. He never took objection to the said charge
either before or after the reading of the charge to the Respondent.
After the Respondent had enjoyed his bail, from 28th
October 1999, in April 2000. (about six
(6) months) thereafter, he filed the said application that has led to the
instant appeal. As reproduced above, the learned counsel did not oppose the
amended charge containing the signatures of the Assistant Legal
Officer/Senior State Counsel and Ngige,
Esqr. The above underlined by me, are clear and
unambiguous. The learned trial Judge noted that after the said plea, that
the Respondent is presumed to have put himself on trial. The Respondent and
his learned counsel never appealed against that holding. The said
application in my respectful view was a subterfuge and an after thought made
to truncate his trial.

“Any objection to
a charge for any formal defect on the face thereof shall be taken
immediately after the charge has been read over to the accused and not later".

[the
underlining mine]

It can be seen
that the provision, is mandatory. Therefore, it is the duty of counsel in
-particular arid of an accused person who is defending himself personally,
to promptly, take any objection to every perceived irregularity to the
charge including the type of objection in respect of the said charge in the
instant case. See the case of Okaroh
v. The State (1990) I NWLR (Pt.125) 128 at
136-137; (1990) SCNJ. 124.Since the Respondent and his learned
counsel, did not comply, or avail themselves with this mandatory provision
of the Act, they were hot entitled to raise the objection in the said
application. On this ground alone, this appeal, in my respectful view,
succeeds. This is because, the issue is a matter
of settled law.

But having regard
to the said issues of the parties, I will now deal with the same. Firstly,
when or where counsel announces that he is appearing for a party, it is now
firmly settled that it is not for the court, to start an enquiry into his
authority and the court never does. See the case of
Adewunmi v. Plastek Ltd. (1986) 3
NWLR (Pt.32) 767 at 784; (1986) 6 S.C. 214 at 223. Once a Counsel
appears in a case and announces his appearance, the court assumes that he
has the authority of his client for the conduct of the case. Once he is
instructed and he announces his appearance in court, and he is so
instructed, it raises a presumption of his authority and he assumes full
control of the conduct of his client's case. See also the case of
AlhajiTukur v.
Governor Gongola State (1988) 1 NWLR (Pt.68)
59; (1988) 1 SCNJ. 54; (1988) 1 S.C. 78
at 96-95; (1988)
AllNLR 42.Even
if the above authority relates to a civil matter, in the case of
lbrahim & anor.v. The State (1988) 2 S.C. 91 at 93. It was held -per
Obaseki, J.S.C, that in institution of
criminal proceedings, delegation of/by that State/Attorney-General under
Section 191 of the 1979 Constitution empowering such delegation, was held to
be Constitutional and valid. See also the cases of
Adiov. The State (1986) 4-S.C. 194
at 212-21 3 citing the case of Emelike
v.The State (1970) 1 ANLR
55; The State v. Gwonto & 4 ors.
(1983) 3 S.C. 62 at 84and The State
v. Ilori (1983} 1 SCNLR 94 at 110.

In the "case of
The State v. Collins Aibamgbe &
anor.(1988) 3 NWLR (Pt.84) 548
at 578; (1988) 7 SCNJ. (Pt.
1) 128 at137, 153which dealt with the propriety of a Private Legal
Practitioner instituting and undertaking a criminal prosecution within the
meaning of Section 191 of the 1979 Constitution, now Section 174 of the
1999 Constitution, this Court, - per Eso,
JSC, stated that the Court had had occasion to rule before, that institution
and undertaking of a Criminal Prosecution within the meaning of Section
191 of the 1979 Constitution, mean the Attorney-General and his staff
and that they, can commence and make themselves responsible for a criminal
prosecution and not that they cannot brief private Practitioners to appear
on behalf of the Attorney-General either alone or together with a member of
the Attorney-General's staff, the cases of DPP v.
Akozor (1962) 1 ANLR 235 and NafiuRabiu v. Kano State (1980) 8-11 S.C. 130,
were referred to. See also Brett & Mclean Commentary in Article 202
at page 54.

In the case of
AlhajiTukur
v. Government of Gongola State(supra),
this Court - per Oputa, JSC, citing the case
of DPP v. Akozor (supra), held that the
DPP, had the power having regard to Section 97 of the Constitution,' to
instruct a Private Legal Practitioner to appear in a criminal case on his
behalf and that the DPP or a member of his staff, can or could also appear
with a private Legal Practitioner so instructed. This is why, in practice, a
Fiat issued by the Attorney-General, is always produced in Court by the
Private Legal Practitioner before the commencement of any arraignment or
trial as evidence of the instructions or Authority to so represent.

Incidentally, or
significantly, the court below, acknowledged this fact, when His Lordship -
Oguntade, J.C.A., (as he then was) and who wrote
the lead Judgment, stated at page 182 of the Records inter alia, as
follows:

"There is no
doubt that under the scheme in 1997, the Attorney-General of the Federation
could in appropriate circumstances authorize a private legal practitioner to
undertake the prosecution of offences under Decree No. 18 of 1994, It
is also note-worthy that only the Attorney-General of the. Federation could
at the time raise questions as to -whether or not such authority to
prosecute was properly given ".

In
NafiuRabiuv.Kano State (supra), a Private Legal
Practitioner -Kehinde Sofola (SAN), (now of
blessed memory), appeared with Miss O. Sofola
and Miss O. Ogundipe for the Respondent - Kano
State.

Just recently, in
the case of The Federal Republic of Nigeria v. George
Osahon & 7 ors.(2006} 5 NWLR (Pt.973) 362 at 405, 410-411; (2006) 2
SCNJ.348 at 372-373; (2006) 2 S.C (Pt. II) 1 at
20 -21- per
Kutigi.
J.S.C. (as he then was now CJN), Sections 56 (1) of the Federal High
Court Act, 1990 and Section 174 (1)(a), (b) & (c)
of the 1999 Constitution, were considered.

Section 56(1)
of the Federal High Court (hereinafter called "the Act") provides as
follows:

"In the case of
prosecution by or on behalf of the Government of the Federation or by any
Public Officer in his official capacity the Government of the Federation or
' that office may be represented by a law officer, state counsel or by
any legal practitioner duly authorized in that behalf by or on behalf of the
Attorney-General of the Federation".

[the
underlining mine]

I am aware that
this Act is a Federal Act, but the Constitution, is supreme to it. It is
also clear or plain to me, that the Act has not closed the category of those
who could prosecute criminal cases in that court. If it
had purported to do so, certainly, it will be in conflict with
Section 174(1) of the 1999 Constitution.

Kutigi,
JSC (as he then was now CJN), stated inter alia, as follows:

"From the provisions of the Acts and the Constitution cited above, which in
my view are clear and unambiguous, it is evident that the following persons
have the right to practice in the Federal High Court –

(1)
All persons admitted as legal practitioners to practice in Nigeria (subject
to the provisions of the Constitution and the Legal Practitioners, Act
(See Section 57).

(2)
Law Officers (See Section 56(1)

(3)
State Counsel (see Section 56(1);

(4)
Any legal practitioner duly authorized in that behalf by or on behalf
of the Attorney-General of the Federation (see
Section 56(1)

(5)
Police Officers (see Section 23 of the Police Act).

(6)
Any other authority or persons (see Section 174 (l)(b)
& (c) of the 1999 Constitution).

One can safely
say that the people mentioned under (2), (3) & (4) above, must also
necessarily be personsadmitted as legal -practitioners to
practice in Nigeria just as it is under (1). Those under (5) &
(6) need not be legal practitioners at all. But if they are, the
better".

[the
underlining his]

From (4) above,
in my respectful view, that objection by the Respondent's learned counsel at
the trial court, amounted to an attempt of drawing wool or a red-herring in
the "eyes" of that court. Afterwards, 1 note that the charge in the Tribunal
pursuant to Section 24(2) (b) of the Decreewas signed by
Ngige, Esqr, as the
Prosecutor on behalf of the Attorney-General of the Federation and the case
was even part-heard.

Now, a
substitution, is the same thing as an amendment
and an amendment whenever made by the court, relates back to the
original date of the document so amended. See the cases of Col.
Rotimiv. Macgregor (1974) 11 S.C. 133
and The Nigerian Air Force v. James Ex-Wins Commander (I) (2002) 18
NWLR (Pt.798) 295; (2002) 12 SCNJ. 379. See also Section
164(4) of the Criminal Procedure Act. The court below, I agree with the
submission at paragraph 4,05 of the Appellant's
Brief, was wrong in its interpretation of Section 1(3) of the said Decree 62
of 1999 which clearly provides that after the coming into force of the 1999
Constitution, a charge filed before a Tribunal, shall be deemed to have been
duly and properly filed or served before the Federal High Courtor in
fact, shall be deemed amended without the need to bring a formal application
to amend.

If I or one may
ask.
What was wrong with Mrs. Fatunde and Mr. Ngige
signing the charge? In my respectful view, if Mrs. Fatunde alone signed, it
was alright and valid. In that case, the signature of
Ngige, (he did not counter sign. He also signed) was of no moment. If
Ngige signed it alone, he had a fiat of the
Attorney-General, at least, and on the authorities referred to by me in this
Judgment and in particular that of The Republic v
Osohon & ors. (supra), he was entitled
to so sign as the Prosecutor - a-position which was not challenged both at
the Tribunal and during the time the Respondent, pleaded to the charge.
Since a staff of either the DPP or the Attorney-General, could appear with a
Private Legal Practitioner so authorized - See DPP v. Kano State and
AlhajiTukur
v. Govt, of Gongola State(supra),
that a Senior State Counsel/Assistant Chief Legal Officer - Mrs. Fatunde
signed, certainly, cannot or could not vitiate and/ or invalidate the
charge. I so hold.

In any case, the
Respondent and his learned counsel did not at the trial court, the court
below, or in this Court, show what prejudice or embarrassment the Respondent
suffered or any miscarriage of justice occasioned by the two persons,
signing the charge. In fact, I note that the Respondent and his learned
counsel insisted that it was Mr. Ngige, who
indeed initiated the charge and not Mrs. Fatunde. Even if that were so, I
have held that as the Prosecutor, he was entitled to sign the charge as a
representative of the Attorney-General. At worst, the two signatures may be
accommodated ex abundate
cautela. But it was not necessary. At worst, it was a
surplusage. Surprisingly to me, the court below, both at pages 187
and 188 of the Records, stated that Mrs. Fatunde, did not show proof of her
authorizationto initiate the prosecution. An
Assistant Chief Legal Officer or Senior State Counsel in the Federal
Ministry of Justice to show proof of her authority? Wonderful! I will
not say a word about this because; with respect, I don't think it is right
in the least. See The Republic v.
Osohon & ors (supra) and Section 2 of the Law
Officers Act and Section 174 (2) of the 1999 Constitution.

However, having
pleaded to the charge and the said amendment, was
not opposed as I have shown in this Judgment, the Respondent and his learned
counsel, had in fact, waived, so to speak, their right to complain.
They acquiesced and participated in the "irregularity" (and there was none),
the purported "irregularity", did not vitiate the charge. I so hold.

The court below
was, with respect, wrong, when it allowed the appeal of the Respondent and
struck out the charge. Oguntade, J.C.A. (as he
then was) stated at page 189 of the Records, inter alia, as follows:

"In the final conclusion, this appeal is immensely meritorious..."

On the contrary
and with respect, that appeal, was unmeritorious. It was meant to play for
time and delay the expeditious hearing and determination of the case. I wish
the Rules of this Court had permitted me, to award costs against the
Respondent and I should have readily done so. 1 believe
that if bail was not granted to the Respondent, or it was later cancelled,
this case by now, should have long been completed.

In concluding
this Judgment, my answer to Issue 1 is in the Affirmative while I hold that
Issue 2, is a none issue. It is with respect,
speculative and the Court is not allowed to deal with speculations. I had
the advantage and privilege of reading before now, the lead Judgment of my
learned brother, Kalgo, J.S.C. From the
foregoing and the fuller reasoning and conclusion in the lead Judgment, it
is my respectful view, that the merit of this appeal is unassailable.
It succeeds and I too allow -it. I also set aside the said decision of the
court below and in its stead, affirm the decision
of the trial court. The Respondent should now (after the unwarranted
"skirmishes")so to say, go and stand his trial without further ado.